Eisenhut v. Eisenhut , 212 Wis. 467 ( 1933 )

The following opinion was filed May 9, 1933:

Fowler, J.

The appellant claims that the answers in the verdict as to assumption of risk should have been changed from “No” to “Yes” and that judgment should have been entered dismissing the complaint upon his motions therefor made after return of the verdict.

This court is committed to the doctrine that a guest in an automobile assumes the risks incident to the skill of the driver. “If the host driving the car conscientiously exercises the skill possessed by him in handling the car in emergencies,” the guest has no right to demand more. The guest does not “have a right to demand of the host a degree of skill for the security of the guest which the host is utterly unable to exercise for his own protection.” Cleary v. Eckart, 191 Wis. 114, 118, 210 N. W. 267. This rule is recognized and affirmed in the later cases of Ganzer v. Great American Indemnity Co. 209 Wis. 135, 244 N. W. 588; Fontaine v. Fontaine, 205 Wis. 570, 576, 238 N. W. 410; Thomas v. Steppert, 200 Wis. 388, 228 N. W. 513; Harter v. Dickman, 209 Wis. 283, 245 N. W. 157.

From the undisputed evidence in this case it appears that the host exercised such skill as he possessed in trying to get the right wheels of his car from the'shoulder of the road back onto the concrete. The accident was due entirely to his inexperience and lack of skill in handling his car in the existing situation. The case is indistinguishable in principle from Cleary v. Eckart, supra, wherein a guest riding with "an inexperienced host, injured by being thrown out of the car upon its skidding due to the host’s suddenly applying the brakes when a rear tire exploded on a road surfaced with loose gravel, was held as matter of law- to have assumed the risk incident to the host’s inexperience and lack of skill in handling a car in such a situation.

It is true that in somewhat similar situations, as in Poneitowcki v. Harres, 200 Wis. 504, 228 N. W. 126, and Hensel v. Hensel Yellow Cab Co. 209 Wis. 489, 245 N. W. 159, the guest has been held not guilty of contributory negligence. But the drivers in those cases were experienced and skilful, and the basis of recovery was their negligence in maintaining a lookout. As to lookout the host owes the same duty that he owes other users of the highway, instead of the limited duty not to increase the dangers which the guest assumes when he accepts the hospitality of the host. The guest does not assume the risk incident to the host’s failure to maintain a lookout. He does assume the risk incident to the exercise of such skill as the host possesses. There was not negligence "as to lookout in the instant case. The defendant observed and thoroughly understood all the facts involved in the existing situation. What he did not know was how safely to extricate the car from the situation, and that was due to lack of experience and skill.

By the Court. — The judgment of the circuit court is reversed, with instructions to dismiss the complaint.

The following opinion was filed October 10, 1933 :